41 Mo. App. 137 | Mo. Ct. App. | 1890
This action is for damages caused by the killing of a mule which happened, according to plaintiff’s evidence as a witness in his own behalf, in the following way: “I am plaintiff. Live near Fortescue, this county. Know George Swope, and where
Defendant asked an instruction at the close of plaintiff ’ s case in the nature of a demurrer to the evidence, which was refused. The court gave at plaintiff’s request the following instruction: “The jury are instructed, that if they believe from the evidence that the defendant erected and maintained a barbed wire fence along the line, upon the side of the public road; and they further believe that said fence was composed of-two wires only, that said wires were suspended or fastened to trees of a greater distance than sixteen feet from each other, and no posts firmly set in the ground were placed between the trees, and the wires were not tensely stretched, but sagged between i the trees, and that said wire fence so erected and maintained was dangerous, or likely to kill or injure such animals as a horse or mule, and they believe, from the evidence, that the plaintiff’s mule, while the plaintiff was exercising or using ordinary care, that is, such care as an ordinarily prudent man would take of his own mule of like age and character under the circumstances, accidentally got upon or entangled in said wire fence, and was injured or killed thereby, you will find for the plaintiff, and assess plaintiff’s damages at such sum as you may find from the evidence such mule was worth at the time, that is, the reasonable value of such mule.”
I. This instruction should not have been given. It is evidently drawn under the idea that that part of section 5652, Revised Statutes, 1879, as amended by the
But, if such proof was in the record, the instruction would still be erroneous from the fact that the statute in relation to fences and inclosures prescribes a lawful fence as it relates- to trespasses upon fields and inclosures, and not as to accidents of the present nature. Defendant is not liable to. plaintiff arbitrarily for not having performed a statutory duty, but his liability is to be governed by the law of negligence apart from the statute. If plaintiff’s mule had been injured by running into, or upon, an ordinary rail or board fence, which did not fill the requirement of the statute as to fences and inclosures, it would not be supposed from such fact that a liability ensued. Such statute has nothing to do with a case of this sort. Such was the view taken by the supreme court of California in the case of Loveland v. Gardner, 21 Pac. Rep. 766, cited us by plaintiff. And such was also, undoubtedly, the view of the court in plaintiff’s other principal case of Lisk v. Crump, 112 Ind. 504. The instruction should not, therefore, have embodied the statutory requirement of posts firmly set sixteen feét apart, with tensely stretched wires.
II. The foregoing cases of Loveland v. Gardner and Lisk v. Crump, and others cited by plaintiff, announce a rule which [has never been sanctioned by the supreme court of this state. By those cases, a landowner, who leaves an unprotected excavation on his open land, is liable for injury to person or property incurred thereby. Such is not the law with us: Hughes v. Railroad, 66 Mo. 325, quoting and adopting language of Chief Justice Gibson, which Henry, J.,
There is, however, an exception to this rule which has always been recognized ; and that is where the dangerous contrivance, of whatever kind it may be, is made, or placed, so near the highway “ that a person walking upon it might, by making a false step, or, being affected by giddiness, or, in case of a horse or carriage way, might, by the sudden starting of a horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences.” Hardcastle v. Railroad, 4 Hurl. & N. 67; Barnes v. Ward, 9 C. B. 892; Beck v. Carter, 68 N. Y. 283; Gramlich v. Wurst, 86 Pa. St. 74. This qualification is adopted also in this state. Fairgrieve v. City of Moberly, 39 Mo. App. 31; Buesching v. Gaslight Co., 73 Mo. 219. Prom the cases just cited it would appear that the evidence being undisputed as to the distance of the fence from the highway, it was a matter for the court to determine whether it was substantially adjoining the highway. And we feel that it is proper to declare, under the evidence in the case, that the fence was adjoining the public highway, and that, conceding it was negligently constructed and maintained, defendant would be liable for the loss of the mirle, unless he be excused by the plaintiff’s contribution to the injury.
III. Having determined that there was no duty owing to plaintiff requiring defendant to have erected a statutory fence, but that there is a liability if he has erected a fence such as that a prudent husbandman would not maintain at such a place, although upon his own land, we are brought to the question of contributory negligence, which was urged below, and again by counsel in oral and printed argument at this bar. The only legal reason for holding defendant liable would' be upon the ground that his act of negligence was such
In the foregoing remarks we have not overlooked the rule that one is not to be precluded from the use of a highway merely by his knowledge that it is defective. Buesching v. Gaslight Co., 73 Mo. 219; Smith v. St. Joseph, 45 Mo. 449. But this must be understood with the proviso that he uses ordinary care, which is a relative term; and, when he has knowledge of the defect,
The judgment will be reversed, and the cause remanded.